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Abstract:
Ethical issues involving federal judges have been much in the news recently. Among other developments, the House Judiciary Committee held a hearing to consider impeaching a federal district judge; the Judicial Conference of the United States announced two major policy initiatives; and a committee chaired by Justice Stephen Breyer issued an in-depth report on the operation of the judicial misconduct statutes.

This article addresses two aspects of federal judicial ethics. The first involves conflict of interest and disqualification. Under the law, a federal judge is disqualified from hearing a case if (among other circumstances) the judge's impartiality "might reasonably be questioned," or if he or she has "a financial interest ... in a party to the proceeding." The first-quoted prohibition has generated a large body of case law. The second has proved to be a fertile ground for muckraking by investigative reporters, in part because judges can easily fail to remember or recognize that they own shares in corporations that are parties to cases on their dockets. In September 2006 the Judicial Conference of the United States directed all federal courts to institute "automatic conflict screening" using standardized hardware and software. This is a substantial step forward, but a purely internal screening program does not serve the interest in transparency.

The second set of issues involves the operation of the misconduct statutes. A 1980 statute, now codified as Chapter 16 of Title 28, creates a detailed set of procedures for handling complaints against judges and taking appropriate action in instances of judicial misconduct. The Breyer Committee found that in handling the vast bulk of complaints, the judiciary has properly implemented the 1980 Act, but that in high-visibility cases, the rate of error is "far too high." The committee's report and other recent developments point to several aspects of the system that deserve scrutiny. Primary among these is the lack of visibility; neither the availability of the process nor the outcomes of proceedings are sufficiently publicized.

federal courts, judicial ethics, judicial discipline, conflict of interest

Abstract:
In March 2003, the Judicial Conference of the United States, the policymaking body of the federal judiciary, requested that Congress create 11 judgeships for the federal courts of appeals. The Conference based its request, in part, on a workload measure known as adjusted filings. Four courts of appeals were included in the request - but there was no mention at all of the two courts with the highest adjusted filings in the nation, the Fifth Circuit and the Eleventh Circuit. This omission raises two questions, one obvious and one that lurks below the surface. The obvious question is: Why is the Judicial Conference not seeking additional judgeships for courts which, by its own standard, would appear to need them more acutely than any other? Pursuit of this inquiry leads to the second question: Does the process used by the Judicial Conference in formulating its recommendations provide sufficient information to enable Congress to carry out its responsibility for creating judgeships when needed? Those questions are the principal focus of this article. The article examines the Judicial Conference process as well as a recent report by the General Accounting Office that expresses concerns about the standard used by the Conference in formulating its recommendations. The article concludes with suggestions for a more open process - a step that, it is believed, will provide significant benefits to the judiciary as well as to Congress.

Judgeships, federal courts of appeals, caseload, appeals

Abstract:
In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants' comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference.

First, the participants in the earlier conference apparently assumed that appellate courts carry out their work in isolation from the political and social conflicts of their time. No one today would accept that picture, but has immersion in controversy changed the way appellate courts carry out their business? That is a different, and more difficult, question. Second, the 1975 conference took place at a time of ferment over issues involving precedent, uniformity, and appellate structure. Today, concern about disuniformity in appellate decisions barely registers on the seismometer of legal discourse. This is particularly remarkable at the federal level, given that the only tribunal with authority to resolve conflicts with nationally binding effect - the Supreme Court of the United States - has actually reduced its decisional output to half of what it was in 1975. Is this a problem? And what about uniformity in state systems?

Finally, issues of volume, process, and delegation of responsibility aroused great concern among prominent judges, lawyers, and academics in the 1970s. Today, there is little outcry today over the appellate shortcuts that once aroused so much dismay. Is this because people were overreacting to the phenomenon of rapid growth? Or has the quality of appellate justice deteriorated through incremental steps that have gone unnoticed?

appeals, uniformity, precedent, oral argument, caseload

Abstract:
On March 11, 2008, the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, approved the first set of nationally binding rules for dealing with accusations of misconduct by federal judges. The new rules implement recommendations made by a committee chaired by Supreme Court Justice Stephen Breyer. The Breyer Committee found that although the judiciary has been doing a very good overall job in handling complaints against judges, the error rate in high-visibility cases is far too high.

The new regulatory regime comes into existence at a time when federal judges have been accused of ethical transgressions that span the spectrum of actionable misbehavior. Indeed, at least three judges face the possibility of impeachment proceedings.

This article examines the newly adopted misconduct rules against the background of these recent controversies. The underlying question is the same one that Congress grappled with when it established the current statutory framework in 1980: can federal judges be trusted to investigate and impose appropriate discipline for misconduct in their ranks?

The article begins with a brief account of the history that led to the promulgation of the new rules. Next, the article outlines the procedures established by Congress and the judiciary for handling allegations of misconduct by federal judges. The remainder of the article addresses the major issues raised by the new rules: the move toward greater centralization in the administration of the disciplinary system; the definition of misconduct; the possible need for greater procedural formality; the nature and timing of public disclosure; and efforts to make the process more visible.

federal courts, judicial ethics, judicial discipline, legislation

Abstract:
The traditional course in "Federal Courts" - built on the model established by the great Hart and Wechsler casebook - focuses on issues of federalism, separation of powers, and institutional competence. That focus provides a powerful intellectual model for organizing the materials that make up the field of study, and it is hard to imagine anyone teaching a Federal Courts course today without drawing heavily on that model. But the traditional model is deficient in one important respect. Most of the students who take a Federal Courts course do so because they think it will help them to practice law more effectively on behalf of their clients, particularly in the setting of litigation. A Federal Courts course falls short if it does not self-consciously and aggressively seek to serve that student interest. Fortunately, it can do so without sacrificing either the intellectual rigor or the intellectual rewards of the traditional model.

This essay sketches the elements of a pedagogic approach that builds upon the traditional model but adapts it to the goal-oriented perspective of lawyer-litigators. First, the course should be organized primarily on the basis of the tasks that lawyers perform. Second, the course should emphasize the differences between federal and state courts that lead lawyers to prefer one forum over the other, not only in civil rights cases, but in the general run of civil litigation. Third, the course should give heavy emphasis to the centrality of removal jurisdiction in civil practice today. Fourth, diversity jurisdiction should be given a full measure of attention and coverage. Finally, the course should make extensive use of problems that ask students to achieve particular results for a lawyer on one side of a dispute.

federal couts, state courts, jurisdiction, pedagogy, problem method

Abstract:
Sandra Day O'Connor retired from active service on the United States Supreme Court in early 2006. As her principal "retirement project," she has taken on the task of defending the independence of the judiciary. In speeches, op-ed articles, and public interviews, she has warned that "we must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies."

Justice O'Connor has done the nation a service by bringing the subject of judicial independence to center stage and by calling attention to the important values it serves. Unfortunately, however, in describing the threats to that independence, she has presented a picture that is in some respects overstated and, in others, incomplete.

Four aspects of Justice O'Connor's critique are addressed in this article. First, Justice O'Connor has painted with too broad a brush in identifying what might be called "external" threats to the independence of the judiciary. Second, she has not adequately emphasized what may be called the "internal" aspects of judicial independence. Third, although she has discussed the threat to judicial independence posed by the election of judges in the states, she has said little about the current confirmation process for judicial nominations in the federal system, a development that may pose as serious a threat as any of the recent events that she does discuss. Finally, while Justice O'Connor has disclaimed the idea that "it is somehow improper to criticize judicial decisions," she has at the same time suggested that when elected officials rail against elitist judges, or when writers publish "jeremiads" against "judicial tyranny," they do present a threat - indeed a "grave threat" - to judicial independence. This view is misguided. In America, no one is above criticism, including criticism that is nasty and ugly and stupid. To suggest that intemperate language endangers the independence of the judiciary is itself irresponsible - and in the long run will only undermine that independence.

judicial independence, Sandra Day O'Connor, Justice O'Connor, federal courts, judicial nominations, judicial confirmations, judicial tyranny